No. An author can't own history. The court said that facts about the past, and even theories explaining why things happened, are like ideas. Copyright protects the way you express ideas (your exact words and sentences), but not the ideas themselves. This is so everyone is free to learn about, research, and write about history. If Hoehling could copyright his theory, it might stop other historians from exploring the Hindenburg disaster. Because Mooney and Universal only used Hoehling's *idea* (that Spehl was the saboteur) and didn't steal his paragraphs word-for-word, they didn't do anything illegal.

The court agrees with the earlier decision in favor of Universal and Mooney because the parts they allegedly copied from Hoehling's book are not protected by copyright. The court says that (1) ideas about historical events can't be owned; (2) facts, including those discovered by Hoehling, are free for anyone to use; and (3) common storytelling elements are not protected. The court emphasizes that copyright protection for historical books is limited and doesn't cover facts, ideas, or storylines. This limited protection is important to encourage people to write about history and share knowledge. While directly copying someone's unique writing is not allowed, later authors have a lot of freedom to build upon earlier historical works.

Because it is virtually impossible to write about a particular historical era or fictional theme without employing certain `stock'or standard literary devices, we have held that scènes à faire are not copyrightable as a matter of law

—recognizing that "the scope of copyright protection in historical accounts is narrow indeed, embracing no more than the author's original expression of particular facts and theories already in the public domain

We are especially mindful that, "[t] o avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter, including theories or plots."

Scènes à faire "[are] incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic."

German beer hall, the phrase "Heil Hitler," and certain German songs are scenes a faire about Nazi-era Germany

Because substantial similarity is customarily an extremely close question of fact, summary judgment has traditionally been frowned upon in copyright litigation

In works devoted to historical subjects, it is our view that a second author may make significant use of prior work, so long as he does not bodily appropriate the expression of another

Additionally, the Second Circuit, which almost 70 years ago issued the classic formulation of the "sweat of the brow" doctrine in Jeweler's Circular Publishing Co., has now fully repudiated the reasoning of that decision.

Knowledge is expanded as well by granting new authors of historical works a relatively free hand to build upon the work of their predecessors

Although substantial similarity is often a factual issue precluding summary judgment, the Second Circuit has recognized that summary judgment may be appropriate in copyright infringement actions "either because the similarity between the two works concerns only `non-copyrightable elements of the plaintiff's work'or because no reasonable jury, properly instructed …

No. Copyright protection for a historical work is narrow and does not extend to historical facts, research, or an author's interpretations and theories. These elements are considered ideas, which are not copyrightable, and belong to the public domain to encourage the advancement of knowledge. The court reasoned that the primary purpose of copyright is to promote the creation and dissemination of knowledge, a goal best served by allowing history to be the 'common property of all.' Granting a monopoly on historical theories would create a 'chilling effect,' discouraging subsequent authors from exploring the same historical events. Factual information discovered through research is not copyrightable, and authors are free to use facts from prior works. Similarly, stock scenes or 'scenes a faire,' such as a German beer hall scene, are standard in treating a particular topic and are not protected. Because all the alleged similarities between Hoehling's book and the works of Mooney and Universal concerned non-copyrightable elements (facts, the Spehl-as-saboteur theory, and scenes a faire), and there was no wholesale or verbatim copying of Hoehling's expression, the defendants did not infringe his copyright.

The court affirms the district court's grant of summary judgment for the defendants because the alleged similarities between the works pertain to non-copyrightable elements. The court holds that (1) interpretations of historical events are not copyrightable; (2) facts, including the results of Hoehling's research, are in the public domain and can be freely used by subsequent authors; and (3) scènes à faire, or standard literary devices, are not copyrightable. The court emphasizes that copyright protection for historical accounts is narrow and does not extend to the facts, interpretations, and plots contained therein. This limited scope of protection is necessary to avoid a chilling effect on the creation of historical works and to promote the dissemination of knowledge. While wholesale usurpation of an author's original expression is not permitted, subsequent authors are granted broad latitude to build upon earlier historical works.

Hoehling v. Universal City Studios, Inc.

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